Mar 27 2012

SCOTUS Pounds Foundation Of Obamacare

Published by at 2:09 pm under All General Discussions,Obamacare

Updates Below

News from today’s hearings on Obamacare at the Supreme Court of the United States (SCOTUS) indicate Obamacare took a pounding.  CNN’s Jeffrey Toobin was especially shaken:

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.

Toobin added that that the Obama administration’s lawyer, U.S. Solicitor General Donald Verrelli, was unprepared for the attacks against the individual mandate.

“I don’t know why he had a bad day,” he said. “He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices.”

That’s pretty bad news for Obamacare, and damn great news for America. Here’s another damning take:

Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble.  It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli.  On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions.

It looks like Team Obama was not prepared for a couple of things, including Justice Kennedy’s concerns on how Obamacare “changes the relationship between the individual and the government in a very fundamental way” – something Libertarian critics have been saying since day 1. It probably threw Verrelli off his game once he detected the tone of the room.

I have not seen this much hand wringing in quite a while, so it must have been something of a bomb shell.

Let’s hope it holds and Obamacare is thrown out (and ends this liberal, socialist madness for once and for all). Much more commentary over at Hot Air with Ed Morrissey.

Update 2: Oh wow – Verrelli admits not everyone will be required to comply with Obamacare!

However, in the Supreme Court on Monday, Justice Samuel Alito forced President Barack Obama’s solicitor general, Donald Verrilli, to admit that under Obamacare these free riders will not be eliminated despite the individual mandate.

For an elite group—including people eligible for Medicaid who don’t sign up for it and people whose health care expenses exceed 8 percent of their income—the Obamacare mandate is no mandate and the penalty is neither a penalty nor a tax because they are not required to pay it, period.

So Obamacare is not as they argue, something everyone MUST pay into in order to share the pain. Looks like that one admission could kill any reason for expanding government reach. Because once there are exceptions, the lobbyists run to Congress to expand the list of the exempted.

Update: Ouch! Some of the discussions were brutal:

USTICE SAMUEL ALITO: Do you think there is a, a market for burial services?

VERRILLI: For burial services?


VERRILLI: Yes, Justice Alito, I think there is.

JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.”

Isn’t that a very artificial way of talking about what somebody is doing?


JUSTICE KENNEDY: Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Looks like Verrelli got decimated.


38 responses so far

38 Responses to “SCOTUS Pounds Foundation Of Obamacare”

  1. kathie says:

    Obama sent his budget to the House yesterday, not one single member voted in the affirmative, not one.

  2. Neo says:

    Folks like by LeftHandedMan at Daily Kos and James Caville are trying to paint a possible striking down the whole law as the Republicans “owning” the resulting dysfuncional healthcare regime, but it is nothing of the sort. This was plainly the Democrats fumbling the ball on the 1 yard line. It was the Democrat Senate that removed a severability clause put in by the House. The Democrats had 60 Senators and a huge majority in the House that, even if it was for a short period, was able to pass any plan allowed by the Constitution. It was the Democrats who passed a constitutionally flawed bill that is poised to be struck down by the SCOTUS.

    How is this the fault of Republicans ? Oh. That’s right, Progressives are never wrong.

  3. Redteam says:

    That’s about the same way I see it, truthfully, but I based the ‘perhaps’ 7-2 as it ‘appears’ to be so clear cut that it’s going down that they might take this opportunity to appear ‘patriotic, believing in the country’ for the benefit of the libs. (We’re Americans too)

    realistically, it will probably be the 5-4 as you said.

    Strange how you can never know when a Justice is gonna flip. One of the most liberal ever, Warren, appointed by Republican. Flipped immediately.

  4. jan says:

    Redteam, that would be a wonderful outcome to this ACA decision — that there might be some consideration for the public display of ‘patriotism.’

    Like you concluded, though, I doubt that will happen, as ideological thinking will overcome any diversion of patriotic thought by the liberal justices.

    Also, the act of bringing up a vote on Obama’s budget, which was then voted down 419-0, is already being cast and slammed by the House dems as only a Republican ploy to embarrass the president. There is nothing in there about the budget being so awful that no one wanted to back it, even in his own party!


  5. jan says:

    While much focus has been on Justice Kennedy’s remarks, during these ACA’s hearings, here is a piece looking at one of the liberal jurists so-called ‘ramblings,’ and some take-away conclusions from them.

    Breyer’s unhinged Commerce Clause ramblings

    The whole piece deserves to be read. However, the final paragraph holds the writer’s analysis of Breyer’s verbal contribution to the debate:

    Breyer mischaracterized the facts and holdings of every case he alluded to. If this is the quality of argument the liberals on the court are making to Justice Kennedy, the individual mandate is a goner.

  6. jan says:

    Sorry, I misstated that House vote: it was 414-0.

  7. jan says:

    Another good post ACA debate read, this time by Jay Cost:

    Why were liberals so surprised by the Supreme Court?

  8. Dave J says:

    Some troubling statements being made:

    Health Care Before The Court
    Sahil Kapur March 28, 2012, 3:43 PM 20358 493

    A handful of Senate Democrats sought to assure doubtful liberals that the Supreme Court justices aren’t ready to strike down their crowning achievement, standing before cameras and mics Wednesday in front of the court. One warned that doing so would ruin the court’s credibility.

    “This court would not only have to stretch, it would have to abandon and completely overrule a lot of modern precedent, which would do grave damage to this court, in its credibility and power,” said Sen. Richard Blumenthal (D), a former attorney general of Connecticut. “The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it.”

    Sen. John Kerry (D-MA) said the law has been thoroughly vetted.

    “As a senior member of the Finance Committee,” he said, “I can tell you that we had one of the most rigorous and transparent legislative processes that I have witnessed in almost 3 decades here in the Congress. We worked with some of the brightest, most thoughtful and experienced constitutional lawyers in order to make sure that the law was constitutional.”

  9. kathie says:

    John Kerry is a complete idiot!

  10. Redteam says:

    Dave J, doesn’t it make your heart swell with pride when you listen to just how idiotic our Representatives and Senators are? and to think that we let a retard like Kerry spend 30 years there and even seriously think about electing him POTUS. There is nothing such as ‘transparent’ in our legislative process.
    Were they surprised? they are oblivious..

  11. WWS says:

    To repeat that quote from Richard Blumenthal:

    “The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it.”

    So, Mr. Blumenthal, that must be the same thing you would have said when the Court overturned 100 years of settled law and numerous congressional statutes in Brown vs Board of Education, yes? And you would agree that Roe vs Wade must have been a mistake, since even liberal scholars agree it was the most dramatic and drastic stretch the Supreme Court ever made, directly imposing new law on the entire nation? How about it, Mr. Blumenthal?

  12. Redteam says:

    Blumenthal and Kerry are Morons. they are serving in the correct administration for correctly utilizing their particular talents.
    I really like Peggy Noonan’s assessment of Obama out today. link is on Drudge.

  13. jan says:


    I read Noonan’s article as well. She is spot on in her psychoanaysis of Obama. In the past people have continued to ‘like’ him personally, no matter what he did in the areas of policy creation or leadership competence. Now, she sees a a diminishment of even that quality in him, as looking more deceitful and untrustworthy to the populace.

  14. jan says:

    Here’s another article of interest to read called Healthcare and the dynamics of intervention.

  15. jan says:


    Another 17 trillion surprise found in Obamacare

    The hidden shortfall between new spending and new taxes was revealed just after Supreme Court justices grilled the law’s supporters about its compliance with the Constitution’s limits on government activity. If the court doesn’t strike down the law, it will force taxpayers find another $17 trillion to pay for the increased spending.

    The $17 trillion in extra promises was revealed by an analysis of the law’s long-term requirements. The additional obligations, when combined with existing Medicare and Medicaid funding shortfalls, leaves taxpayers on the hook for an extra $82 trillion in health care obligations over the next 75 years.

    What was it that Pelosi said…something about waiting to find out what was in this bill?

  16. ivehadit says:

    IF the Supreme Court knocks this out (as they should-just for starters, it was passed by very shady means including bribes, nevermind the unconstitutionality of it) and it appears that is what they are going to do then there will be (and is now) MAJOR CYA for all those “bright constitutional lawyers and experts” with which the Left worked on this bill. LOL!!!!!!!!!!!!!!!!!!!!!!!!!!

    Imho, the left NEVER cares about the consequences of their actions…sigh.

  17. jan says:

    Michael Walsh has written one of the most clever tongue-in-cheek diatribes on Obamacare, to date:

    Sherlock Holmes meets Occam’s Razor

    “When you have eliminated the impossible, whatever remains, however improbable, must be the truth,” said Sherlock Holmes. The recent three-day intellectual demolition of Obamacare at the Supreme Court exposed to even the most obtuse lefty the flimsy constitutional underpinnings of the so-called “health care” law. The Patient Deflection and Unaffordable Care Act is now well on its way to zombie status, still staggering around in the form of HHS Secretary Kathleen Sebelius, knocking things off shelves and making growling sounds in the direction of religious folk, just waiting for the head shot from the Roberts Court to put it out of its misery.

    As has become plainer every day, the “health care” bill was never about health care. In fact, it has nothing to do with health care or insurance at all. It simply uses one of the Left’s favorite “humanitarian” bludgeons, medical care and an invented fear of its absence, in order to persuade the gullible to forgo an important constitutional principle in exchange for wholly bogus, state-run “compassion.”

    Bold highlights are mine.

  18. WWS says:

    news item: Olbermann out, Client #9 in at Al Gore’s Current TV

    Looks like Olbmermann proved too flaky for even the flakies. Basically, he quit showing up for work unless the station manager called him every morning and said “Please, your Royal Highness, could you deign to grace us, your worshipers, with your Royal Presence Today?”

    And if they didn’t he didn’t show up. You *almost* feel sorry for Gore and Company – but note that I said “almost”. heh, heh, they got what they deserved. Olby’s now been fired from every job he’s ever held on account of extreme douchebaggery.

    Olberman is now supposedly going to come up with some kind of internet based programming that he produces on his own.

    If you could play Olbermann’s career in reverse, it would tell the story of a total unknown, producing unwatched youtube videos,
    who then moved to an obscure web broadcasting outlet, who rises up through the ranks and eventually anchors a news show, becomes the face of a major cable network, and who then begins broadcasting major national sports events. What a career path!

    oh wait, the opposite is what happened.